Right to exit a marriage

Marriage under the statutory law is highly regulated under the law. The law provides a clear procedure for exiting a marriage.

Exiting a statutory marriage can take two forms; the first is separation, which is a temporary state of exiting the marriage without the right to marry another person. The other form is divorce, which is a permanent exit from a marriage that gives the right to marry another person, to all parties.

A. Judicial Separation

Judicial Separation is a situation where, although still legally married, a couple is allowed by court to live separately and not have the full rights and duties of a married couple (including, conjugal rights and duties). With judicial separation, a couple becomes practically divorced in terms of life affairs and relationships but still legally married, so none of them can marry another person.

It is a court ordered separation and often takes care of all post marriage issues, like custody of children and child support.

Judicial separation, which is court ordered, should not be confused with mere separation; a situation where a couple live separately (that is, living apart) without an order of court.

Legal Framework for Judicial Separation

Judicial separation is provided for under the Matrimonial Causes Act in sections 39 to 45. It provides that an order for judicial separation is to be based on the same grounds as those for a divorce. Grounds (conditions) for divorce are highlighted below.

How to Obtain Judicial Separation:

1. Getting legal advice from a lawyer in order to understand the procedure and implications of judicial separation is the first step to take;
2. The procedure for getting an order of judicial separation from a court follows the same procedure for divorce highlighted below;
3. The appropriate court for a judicial separation is the High Court of a state or the Federal Capital Territory, Abuja.

A decree of judicial separation relieves a wife from the obligation to cohabit with her husband, however it does not change her marital status or her rights and obligations under the marriage;

• In a petition for judicial separation, a wife can ask the court to make an order mandating her husband to pay maintenance to her;
• If upon the granting of this order, the husband fails to pay maintenance, he will be liable or responsible for any necessaries that have been supplied for the wife’s use;

A decree of judicial separation does not stop the wife from bringing a petition for the dissolution of the marriage (divorce).

If after a decree of judicial separation, the wife and the husband voluntarily decide to and resume cohabitation, an application can be made for an order discharging the decree of judicial separation.

B. Divorce

Divorce is a court ordered termination of a statutory marriage between a couple. This allows the parties to be free from the obligations of the marriage and also to be free to marry another person. This is the ultimate termination of a statutory marriage, apart from death.

 Legal Framework for Divorce

Section 15 of the Matrimonial Causes Act (MCA) provides that the ground for the dissolution of marriage is that the marriage has broken down irretrievably (without remedy).

Grounds for divorce: To prove that a marriage has broken down irretrievably/without remedy, one or more of the following grounds, conditions and elements have to be proven by a wife before a High Court (section 15 & 16 of the MCA):

1. The husband has wilfully and persistently refused to consummate the marriage. In order words, the husband has refused to have sex with the wife since the marriage began;
2. The husband has committed adultery by having sexual relationship with another woman and the wife cannot tolerate it;
3. The husband has deserted the wife for at least one complete year;
4. The wife and the husband have lived apart (not in the same household) for at least two years and the husband agrees to a divorce;
5. The wife and the husband have lived apart from each other for at least three years;
6. The court made a decree asking the husband to resume his conjugal duties to the wife, but the husband has not complied with the order for at least one year;
7. vii. The husband has been absent for such a period of time (seven years) or circumstance which allows the wife to reasonably believe that he is dead.
8. The husband has behaved in such a way that the wife cannot be reasonably expected to live with him. This last element/criterion will be satisfied if:

• The husband has committed rape, sodomy, or bestiality;

• The husband has been a habitual drunkard or has been regularly intoxicated by excessively taking or using sedatives, narcotics, or a stimulating drug for at least two years;

• Within a period of five years, the husband has been convicted of crimes frequently and has been sentenced on aggregate to imprisonment of not less than three years and habitually left you with no reasonable means of support;

• The husband has been in prison for a period of not less than three years after conviction for an offence punishable by death or imprisonment for life, or for a period of not less than five years or more and is still in prison at the time of the petition;

• Since the marriage and within a one-year period before the petition, the husband has been convicted of attempting to murder the wife or any other crime involving the husband inflicting grievous harm/hurt on the wife;

• The husband has failed, throughout the period of two years preceding the petition, to pay maintenance for the wife even though a court had ordered him to do so or there was an agreement providing for separation between the husband and wife mandating him to pay maintenance;

• The husband is of unsound mind and is not likely to recover; or

• Since the marriage began and within the period of six years immediately preceding the petition, the husband has been confined for an aggregate period of not less than five years in one or more institutions for people of unsound mind.

It is also important to note that a wife seeking for divorce or dissolution of marriage should not bring the case before the court unless the marriage has lasted for more than two years.

However, the court can allow a wife to bring a case for divorce before two years of marriage have elapsed if a refusal to allow the petition will impose exceptional hardship on the wife. (section 30 of the MCA).

How to Obtain Divorce

With any or more than one of the above listed grounds/conditions, a wife can seek and obtain divorce from a High Court of a State or of the Federal Capital Territory, Abuja. However, there are some important steps to take before instituting divorce proceedings:

1. First thing to do is to seek a professional advice from a lawyer on the steps to take and also to determine if divorce is an option and if it is the best option;
2. It is important to gather evidence that will be helpful to a case in court, this includes Marriage Certificate, children’s birth certificates, documents showing jointly owned properties, text messages, images, video recordings or medical reports that can prove any of the grounds/conditions listed above;
3. If a wife intends to demand for division of property, she will need to gather evidence of her husband’s financial worth and capacity. She can do this by documenting her husband’s income and assets using bank statements, salary slips and property documents, if any;
4. When a wife is satisfied that she has the required evidence, she can file a petition for divorce through her lawyer at a High Court. A statutory marriage can only be dissolved by a High Court of the FCT or High Court of the state, no alternative dispute resolution method such as arbitration or mediation is applicable;
5. The petition will be served on the husband and he will be given a period of time to respond to the petition;
6. Following the husband’s response, the divorce case will begin. The wife will be expected to prove first that there exists a valid statutory marriage, this can be proved by providing the certificate of marriage issued to the couple after the conduct of their statutory marriage at the Marriage Registry or a licensed place of worship. However, there are severally other means of proving a statutory marriage, like through cohabitation, pictures;
7. The wife will also have to prove that the marriage has broken down irretrievably. This has to be done by proving the presence of one or more of the elements highlighted above. This can be done by providing documents or presenting witnesses to verify and support your claims;
8. There is a possibility that a judge will encourage a husband and wife to try to reconcile before their case is completed. This will happen if the court does not think it will cause the wife exceptional hardship to continue in her marriage;
9. If after making such efforts, reconciliation is not possible and the court is satisfied that the marriage has indeed broken down irretrievably, the court will grant an order of ‘Decree Nisi’ which is a temporary order that the marriage be dissolved.
10. Three months after the granting of the decree nisi, if the wife is still convinced that she wants to exit the marriage, the court will grant a “Decree Absolute” which signifies the legal and final termination or end of the marriage.

A Customary Marriage being one conducted under native law and custom, it does not have the rigidity (too many processes, forms, and procedures) that comes with statutory marriage.

A woman can leave customary marriage in any part of Nigeria, through two options. The options are non-judicial method and judicial method.

A. Non-judicial method (Marriage Dissolution by Agreement of the Parties)

As the name implies, this method involves terminating a marriage without an order of a court or through a judicial procedure. This method involves an agreement between the parties to the marriage and their families. If a wife intends to end her customary marriage, the steps are:

1. The wife discusses with her parents or representatives of her family on the need to end her marriage;
2. The wife’s family representatives (parents and elders) will then deliberate with the family of the husband on the divorce;
3. The families will decide how much of the bride price and marriage expenses will be returned to the groom’s family. This will be determined by the length of the marriage and the number of children, if any;
4. After an agreement on bride price to be repaid, the wife’s family will repay the husband’s family through the family representatives. This signifies a valid dissolution of the Customary Marriage and the woman is free to marry any other person, without any customary law limitations.

B. Judicial method (Marriage Dissolution by an Order of Court)

 EKONG & ANOR v. AKPAN (2020) LPELR-49575 (CA),

“The provision of Section 166 of the Evidence Act deals with presumption of marriage and it provides that:- “166, when in any proceeding whether civil or criminal, there is a question as to whether a man or woman is the husband or wife under Islamic or customary law of a party to the proceeding the Court shall, unless the contrary is proved, presume the existence of a valid and subsisting marriage between the two persons where evidence is given to the satisfaction of the Court of cohabitation as husband and wife by such man and woman.”

Where the families of the parties to a customary marriage are unable to come to an agreement to dissolve a customary marriage non-judicially (without an order of a court), the next available option is the seek an order of a Customary Court/Area Court to dissolve the marriage.

A petition can be brought to dissolve a Customary Marriage on the grounds of adultery, impotency, betrothal under a marriageable age, ill-treatment and cruelty, leprosy or other harmful diseases, witchcraft, addiction to crime and desertion. (Family law in Nigeria by E I Nwogugu (1999); section 7 of the Marriage, Divorce and Custody of Children Adoptive bye-law order, 1958).

An order for the dissolution of Customary Marriage may be granted by a Customary Court/Area Court. A Customary Court of Appeal in the state can hear appeals on the matter. When the court grants an order for the dissolution of a Customary Marriage, it will also order for the bride price to be repaid to the family of the groom as stated in the case Eze v. Omeke (1977) IANSLR 138

Islamic law allows women to exit and leave their marriages, like any other marriage in Nigeria.

Wapanda v Wapanda (2008) 1 NWLR (Pt. 1068) 364:

“Dissolution of an Islamic marriage ‘Khulu’ (redemption) can, in general arise under two circumstances: – (a) When both the husband and the wife mutually decide on a separation. This happens where there is mutual consent from the spouses to separate. The husband can divorce the wife with no difficulty subject to such terms, if any, as may be agreed upon between them. On the other hand, if it was the wife who wants ‘Khulu’ and the husband agrees to dissolve the marriage on certain conditions agreed upon between the spouses, there arises no difficulty. The couple may not even have recourse to a law court. (b) When it is only the wife who wants to get a release from the marriage tie, and the husband appears unwilling to ‘Khulu’ and insists on the subsistence of the marriage tie in spite of the wife’s resentment to it, the wife cannot dissolve the marriage under ‘Khulu’ by herself. She has to get it done through the agreement of the husband or through the judicial process.

From the above, it is clear that the Islamic marriage can be dissolved in two ways: judicial and non-judicial method.

A. Non judicial method (Marriage Dissolution by Agreement of the Parties)

The steps involved in this method include:

1. A wife may agree with her husband to dissolve the marriage amicably (Mubarah);
2. If the husband does not agree with the wife’s decision to dissolve the marriage, the wife can pay a ransom to exit the marriage (Khulu);
3. The wife’s family representatives will discuss with her husband and his family in order to agree on a sum not more than the sum the husband paid as bride price;
4. The wife will be expected to pay this sum to the husband. That signifies the end of the marriage.

B. Judicial method (Marriage Dissolution by an Order of Court)

The steps involved in this method include:

1. Where an agreement is not reached concerning the dissolution of a marriage, a wife may approach a Sharia Court for an order dissolving the marriage. This is known as Tadriqor Faskh;
2. Here, the wife petitions the court to dissolve the marriage on the ground that her husband has violated the marriage terms and has not fulfilled his obligations under the marriage.
3. If the court is convinced of the wife’s claims, the court will make an order dissolving the marriage and releasing the wife from all obligations of the marriage;
4. If the marriage is dissolved through a court order, the wife does not have to repay the dowry or pay any sum to the husband for the dissolution to take effect.